How to End the Judicial Confirmation Wars
Political norms surrounding the courts are broken, but new rules could restore balance to the process.
The regular controversies over Supreme Court appointments serve as a good example of how norms are only as strong, or last only as long, as the institutional arrangement they are supposed to support. The nominating process now is riven by raw power plays, not marked by civility, or buttressed by norms committing the Senate to fair hearings and some measure of deference to the executive. Each side will seize upon any advantage it can in nominating and confirming, or blocking from accession to the court, justices of a particular ideological stripe. “There are no rules,” as Ben Wittes and Miguel Estrada wrote three years ago: “the “confirmation process is the law of the jungle.”
But it remains hard for the participants in this conflict to admit to what is going on, and why it is inevitable. Each appeals as it suits them to “norms” and accuses the other of blatantly disregarding them. And Wittes and Estrada lamented the fallen state of affairs in which nominees did not “receive prompt hearings and up-and-down votes based solely on their objective qualifications—education, experience and temperament.”
But it would be better to set aside these concerns and openly acknowledge the truth of the matter. The court is the site of power plays, because the court is powerful: It routinely accepts cases and renders decisions with major impact on the nation’s political, social, religious and cultural life. On the most polarizing issues, the court by definition will often render a large swath of the country deeply unhappy with the outcome. The disappointed parties will experience still keener frustration with the 5-4 votes—razor-thin margins for winner-take-all results. Add to this combustible mix that every single nomination may produce a justice who serves for 40 or more.
It seems nothing short of preposterous to believe that certain "norms" of comity and deference to the executive will hold up under these conditions. Nor, for that matter, will the losing side take solace in the knowledge the justices casting votes against them were well-qualified to take their seats and exceptionally skilled in doing the damage.
From day-to-day, Democrats accept that Donald Trump is president and may exercise his legitimate executive authority, and Republicans acknowledged in similar fashion the Clinton and Obama presidencies—even if one takes into account impeachment proceedings brought against the former and a committed program of obstruction pursued against the latter. But the opposition political party has to swallow hard to accept that a president’s authority extends to his opportunity to shape the Supreme Court for a generation or two after he leaves office. And it will be that much harder to sell any number of Democrats on the proposition that they should honor the norm of deference to a president who lost the popular vote by millions and who, critics charge, won with the illicit support of a foreign power.
But the hostility to Trump, while it will stiffen resistance to this nomination, is not the primary source of it. Any Republican president now poised to reshape the court in the aftermath of Kennedy's retirement would meet with similar resistance and for the same reasons: the outsize role of the court and the decades’ length of the typical terms of service. Both Democrats and Republicans, liberals and conservatives, are highly and reasonably motivated to fight in these conditions. The “norms” have little chance. It is not obvious why they would.
The longer discussion of the nominating process assumes that the norms still have life to them—and the more elected officials feel compelled to pay empty homage to them— the more hypocritical and poisoned the process becomes. It then becomes imperative for the party mounting resistance to deny that it is driven by ideology or distinctive constitutional visions, and to find instead severe personal fault with the nominee. Sometimes they will claim to have uncovered a strain of unacceptable jurisprudence, bias or political thought. At other times, the objection will lodge against personal character: some questionable conduct exposed in their personal or professional life.
Required by fidelity to “norms” to give the nominee fair and neutral consideration, without regard to ideology or judicial philosophy, the opposing party has to assure that the assessment is negative. No, it is not that the nominee is conservative, but that he or she stands outside the "mainstream." Yes, the president is entitled to his or her nominee, but only if the individual question is a person of high integrity, and here is someone who has come forward to report on this scandalous or disreputable behavior in college/law firm/Kiwanis Club, and so on. The stage is then set for the full-scale demonization of someone who often, only hours before, had struck everybody as a reasonably decent sort.
Sometimes the false notes struck are ear-piercingly loud. I recall my experience as White House counsel with a Republican senator who disliked a judicial nominee’s "liberal" jurisprudential orientation. Affecting to honor the “norms”, he couldn't admit to the real grounds of his opposition. So the senator claimed to have read, and found lacking in quality, a number of the briefs the nominee had prepared for clients in private practice. Of course, he assured me, "elections have consequences," and in the ordinary course, he would have supported the president's nominee. However, this nominee’s work did not meet the appropriate standard of excellence and by refusing to return a “blue slip,” he could not allow the nomination to proceed for floor consideration. To this he added the risible suggestion that he was registering his opposition as an ally of the president—by helping him appoint judges of the caliber that would reflect well on his administration. I knew why he was against the nominee, and he knew I knew: we would have been better off, and saved much time, if he had just said it.
The judicial nominating process in general, and the Supreme Court process in particular, are contaminated from start to finish with disingenuous claims and counterclaims, guaranteed to end in something close to party-line votes cast amid ugly rhetoric and followed by recriminations.
The norms many Americans understandably hold dear, now in an obvious state of decay, might retain some vitality in a differently ordered world. One might imagine a world in which the court didn't preside so majestically, and with such sharp divisions, over issues ranging from reproductive rights to burning issues of political and gender equality. Issuing decisions in admiralty or choice of law, or other matters not likely to grip the larger body politic, the court could do what is often said it should, routinely, do: just “follow” the Constitution and the law, drawing for their readings and interpretations on all the standard and generally accepted tools of their craft. Then it would be easier to imagine realizing in the nominating process the various ideals of impartial deliberation and fair-minded deference to the executive. But that is not this world.
One long-standing proposal with so far no momentum has been to impose limits—under one leading proposal, eighteen-year limits—on Supreme Court terms. This makes sense. Eventually, once fully in effect, every president could expect to make at least one Supreme Court nomination during a four-year term in office.
This reform could have multiple benefits. It would drain away some of the political tension, if not eruption of crisis, around each nomination. The retirement of an Anthony Kennedy might not shake the country to its very foundations. Vacancies would remain consequential, but with more regular turnover and each president assured of a pick, there would be less drama.
This cap on terms could also nudge the court toward a greater posture of humility. Justices serving for only a defined term, their ranks regularly refreshed, might have a more reliably modest sense of their mission. It is still possible that justices serving for only 18 years would seek or acquire star qualities and the court would retain an appetite for major interventions in the political and social life of the country. But with justices regularly rotating on and off the court, the court might gravitate toward case selection and management that is more routine than supreme.
Finally, subjecting the court to term limits would help spare the country the standard vacuous confirmation hearing. Now the senators come armed to high-stakes major confrontations, aware that the nominees are well coached in fending off questions with non-committal answers. The senators do not expect to learn anything, and the candidate gladly obliges. Term limits won’t transform these hearings into edifying experiences, but with less pressure around each nomination, it matters less that the hearings are non-events.
It is also worth considering the requirement of a supermajority if the court were to overturn a legislative enactment. A few state constitutions contain such a threshold. The rationale is straightforward: a simple majority should not be enough to thwart the will of the electorate as expressed through its representatives. The justices would have to strive for more consensus to strike down a legislative enactment; supermajority decisions may have more credibility with the public than the raw one-vote margin in landmark constitutional cases.
It is not surprising that major reforms like these are not readily taken up. An exceptional act of political will is required, and the public policy agenda is always packed with concerns that politicians and voters find more compelling and, certainly, accessible. Of course, it is also the case that not everyone will agree these changes would be beneficial. There are counterarguments in each case, and a serious debate, if there ever is one, will be robust and extensive.
However, there are perhaps two overriding reasons why more realism about outdated norms and attention to reform alternatives have limited prospects. One is the ongoing hold that norms have on the public imagination. It's not easy to for politicians to admit, or for the electorate to accept, that they have outlived their usefulness.
The second of the reasons is fairly basic and maybe more decisive: control of a powerful court is a prize that it is hard to give up trying to win. The battle for control may be brutal and wearying, but it is well worth it to the winners, on issues so vitally important to them, to get to “5” and hope to keep their majority for a generation or more.